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Wolf Creek v. Virgin Valley Water District Suit Moves Closer to Trial As Judge Declines Summary Judgment for Either Party (At Least for Now)

This may feel like an eternity ago, but let’s keep in mind this was just over a month ago: Right here, on this site, we unearthed a treasure trove of court documents that finally helped us all understand the reason why Wolf Creek Golf Club and Virgin Valley Water District (VVWD) are battling each other in court. And for that matter, these court documents also helped us all understand why the Southern Nevada Water Authority (SNWA) has been caught in the middle of this legal war.

Today in Clark County District Court, Judge Timothy Williams mostly sidestepped demands from both sides to rule on important tenets of the case. Instead, we got a sneak preview of what’s probably coming to a jury near you this winter.

Now that so much was discovered during discovery, what’s next?
Photo by Andrew Davey

On April 22, my colleague Mike McGreer gave a thorough explanation of what’s in the documents that were obtained once the court granted Wolf Creek discovery, or the opportunity to investigate VVWD and the decisions that led to the district attempting to reset the “market rate” for local water. Later that day, I chimed in and pointed out how these documents reveal a much more muddled reality of the alleged “market rate”, as SNWA could not legally use the surplus golf course water that VVWD offered to turn over to SNWA for the ICS (or “intentionally created surplus”) program that’s part of a very intricate network of agreements meant to keep the peace among the seven states that use Colorado River water.

This inconvenient truth came up in court today. But first, Judge Williams had to rule on Wolf Creek’s motion to amend its complaint. Despite VVWD legal counsel Jedediah “Bo” Bingham’s complaint about the amended complaint, Judge Williams allowed Wolf Creek to amend its complaint in light of what was uncovered during discovery.

But when it came time for Judge Williams to decide on VVWD’s motion for summary judgment on its counterclaim that Wolf Creek committed “abuse of power” and Wolf Creek’s motion for summary judgment on parts of its claim pertaining to how VVWD determines “market rate” for local water, the judge made clear he needs more time.

“Everybody is paying a fair rate for water. Wolf Creek just wants to pay less than everyone else.”
– Jedediah “Bo” Bingham, VVWD legal counsel
Left to Right: VVWD manager, attorney Bo Bingham, and board member Rich Bowler. Photo by Andrew Davey

As the hearing continued and Judge Williams prepared to decide on the other motions, Bingham reiterated VVWD’s argument that the district has the right to decide water rates, and even claimed that Wolf Creek should pay more regardless of how much SNWA pays. According to Bingham, “Wolf Creek has been paying $250 per share. That is five times below the market rate for water”.

Bingham continued, “Everybody is paying a fair rate for water. Wolf Creek just wants to pay less than everyone else.” So far, only SNWA has been willing to pay the full $174 per acre-foot (or $1,246 per share) rate that VVWD seeks. And as we learned last month, SNWA hasn’t actually paid for any of the “leftover golf course water” that VVWD has offered because this pool of water doesn’t comply with ICS rules.

Photo by Andrew Davey

Wolf Creek legal counsel Jeffrey Sylvester countered, “Using SNWA’s rate to determine our rate, for a local golf course, would be improper. SNWA is not the market, and their lease rate should not determine our rate.” When we spoke with former VVWD Trustee (and current Mesquite City Council Member) Sandra Ramaker last September, she voiced agreement with Wolf Creek’s version of events when she recalled, “We agreed to lease these shares at $250 per share [or about $35 per acre-foot] to the golf courses, and to the farmers who wanted them. As time has gone on, they’ve said, ‘You know, there are people who would have paid more.’ Well, there weren’t people who wanted to pay more.”

Bingham later indicated that Kenyon Leavitt and Mark McEwan, Ramaker’s then colleagues on the VVWD Board of Trustees, submitted testimony in support of VVWD’s claim that the 2011 lease agreement was meant to be “shot in the arm” temporary aid, not permanent pricing. Sylvester countered that all the evidence that’s already been collected during discovery backs up his (and by extension, Ramaker’s) take that the rate that Wolf Creek and other local golf courses agreed to in 2011 is far closer to a fair market rate than a price VVWD agreed to with SNWA for water that SNWA still can’t legally use.

“This case is about fair market value. It’s not about effluent water or beneficial use.”
– Jeffrey Sylvester, Wolf Creek legal counsel
Photo by Andrew Davey

As the hearing chugged on, Sylvester pleaded with Judge Williams to rule in favor of his motion for summary judgment on three matters: VVWD’s claim that Wolf Creek is not sufficiently utilizing effluent water from the City of Mesquite, VVWD’s claim that Wolf Creek is somehow violating the 2011 lease by sharing some water with a neighboring HOA common area, and VVWD’s claim that Wolf Creek’s refusal to pay VVWD’s desired $174 per acre-foot rate somehow violates state law that requires that water be appropriated for “beneficial use”.

According to Sylvester, “This case is about fair market value. It’s not about effluent water or beneficial use.” He once again alluded to the discovery evidence that suggests the City of Mesquite can not supply enough effluent water to ensure adequate year-round water supply, and he cited the past Mesquite Irrigation Company president’s statement that Wolf Creek is putting its water to beneficial use under the current lease agreement. As Sylvester later exclaimed, “[Wolf Creek] has established beneficial use. Period.”

After nearly 90 minutes of back-and-forth between Wolf Creek’s legal team and Bingham (for VVWD), Judge Williams simply requested, “Give me a couple of weeks.” Though considering Williams’ earlier comments suggesting his preference for allowing the court factfinder and the jury to get to the bottom of this case, it’s far from certain he will rule on any of the merits of this case next month. And with the two parties refusing to even agree on a common set of facts (let alone any kind of settlement), the only certainty here is that this case will likely head to trial by jury this December.

This may feel like an eternity ago, but let’s keep in mind this was just over a month ago: Right here, on this site, we unearthed a treasure trove of court documents that finally helped us all understand the reason why Wolf Creek Golf Club and Virgin Valley Water District (VVWD) are battling each other in court. And for that matter, these court documents also helped us all understand why the Southern Nevada Water Authority (SNWA) has been caught in the middle of this legal war.

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